In a way, the idea that the Supreme Court would overturn their landmark ruling in the Citizens United case, in just two years’ time, with the same personnel on the Court based on a state Supreme Court holding in Montana, of all places, was pretty fanciful. And the Court did not surprise anyone.
They quickly and quietly reversed the Montana ruling which banned corporate contributions to political campaigns. Montana didn’t provide any new information from after the Citizens United ruling to bolster their argument. So the same five Justices made the same decision. “The Court is reaffirming their refusal to recognize reality,” said Rob Weissman of Public Citizen, in an interview shortly after the ruling was announced.
In fact, it’s not entirely clear that it’s a loss for the Court to refuse to take up American Tradition Partnership, Inc. v. Bullock and to just summarily overturn the ban on corporate contributions. As Rick Hasen points out today, taking the case could have easily made things worse. Citizens United itself wound up with its ruling after looking at the case in a far greater scope than what the lawyers argued at court. They found things in that ruling that were not anticipated by the case. And that would have been possible in American Tradition Partnership, Inc. v. Bullock as well. For example, the Court could have found that limits to direct corporate contributions to candidates are unconstitutional.
Given the members of the Supreme Court we have now, and the fact that they are unmoved by the heavily negative public opinion of the Citizens United ruling, there’s no reason to believe that they wouldn’t have jumped at an opportunity to actually do more damage to campaign finance laws. That doesn’t mean that you don’t work to change the law, but it might mean that you pick a different venue. Weissman of Public Citizen doesn’t even believe that a scandal showing the breakdown in campaign finance and the opportunities for corruption under the new iteration of the law would move the Court.
“The underlying logic of Citizens United is so self-reinforcing, it’s not clear that a scandal would move them,” Weissman said. “They would say the scandal was around the edges.” However, Weissman added, you cannot pretend the Supreme Court doesn’t exist, and operate like they aren’t there, when cases like this come up, with a possibility to overturn the worst aspects of current campaign finance law.
One solace for reform-minded types is that Justice Kagan joined the dissent, which essentially said that there’s no point in re-litigating this at this time because the majority will simply uphold. There was some thought that Kagan wasn’t fully committed to overturning Citizens United, because of some law articles she previously wrote. But she looks firmly in the camp at this point, meaning there are four solid votes to overturn.
Outside of a change of personnel on the court, however, reformers will have to look to Congress, and possibly a Constitutional amendment on campaign finance matters. A coalition of groups under the “Move to Amend” banner have built a grassroots movement for a Constitutional amendment, with a focus on state and local resolutions of support, on city councils and in state legislatures. There are also moves in Congress, where the amendment concept has the endorsement of 1/4 of the Senate, over 100 members of the House and the President of the United States. There doesn’t seem to be total consensus on what that amendment looks like yet. But Rob Weissman says that the coalition is being built “in response to unending, unfolding disaster of Citizens United, and in response to the grassroots call for action.”
UPDATE: Nancy Pelosi’s statement lays out the Democratic game plan here:
“Democrats are committed to restoring transparency, accountability, openness, and fairness to our political process. Our strategy is simple: we must DARE – to fight for disclosure and shine a bright light on secret donations; to amend the Constitution to overturn the crushing Citizens United ruling; to reform the system and empower small donors and the grassroots; and to elect reform-minded candidates and leaders to office.
The DISCLOSE Act has foundered since failing by one vote in the Senate in 2010.
UPDATE II: Public Citizen has written in to straighten out some of the alphabet soup among different organizations working on responses to Citizens United. Move to Amend is a chapter-based organization that has done work on local resolutions on amending the Constitution, particularly on corporate personhood. Public Citizen is part of a separate coalition called United for the People, a multi-part organization that is also working on Constitutional remedies to Citizens United at the state, local and federal levels. Why there are two separate grassroots organizations is anyone’s guess, but there are two separate organizations.